Amazingly, the United States District Court for the Northern District of Texas granted summary judgment to the employer, concluding that no reasonable juror in the woman’s shoes would have viewed herself as a victim of sexual harassment. To paraphrase the lower court’s logic: “It’s not like these guys grabbed her or anything. And besides, it was harassment, not sexual harassment.”

The Fifth Circuit Court of Appeals in this opinion was all like, “WTH!” Wait, the court actually said this:

We hold that there is a genuine dispute of material fact whether the maintenance men’s behavior violated Title VII….The sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on Royal’s sex. Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.

Remember, sexual harassment can take many forms in the workplace. When you train your employees, and especially your supervisors who are tasked with receiving complaints of sexual harassment, educate them about the many ways in which an employee may be sexually harassed.

Employee claims she was harassed by excessive sniffing, and the Employer’s side of the story? “[T]he CCC&R brief does not address the reasons for Royal’s termination. As we have said, at oral argument, CC&R stated that Royal slapped flies with excessive force and slammed a door.” Okay then . . . .

I smell a rat. This has to be analyzed by the frequency or severity of the sniffs. A sniff is no more a just a sniff than a kiss is just a kiss. Many dogs sniff, and we know those sniffs can be publicly embarrassing (to us, not the dog). If the co-worker in question was like one of those dogs, maybe one sniff would be enough. I’m just sniffing for evidence, I admit. But maybe Exhibit “A” should be the victim’s perfume. I mean, is the use of this particular perfume a form of “implied consent” to be sniffed? Let it not be said that a creative Plaintiff’s attorney is without an equally creative nemesis.